S. Ramasamy v. State of Tamil Nadu — 1999 DIGILAW 136 (MAD)

ORDER The plaintiffs in O.S.No.8 of 1993 on the file of the Additional Sub Court, Nagercoil, are the revision petitioners. The first respondent filed I.A.No.199 of 1997 in the suit under O.1, Rule 10 of the Code of Civil Procedure for impleading the second respondent as a party to the proceedings. The learned First Additional Subordinate Judge by his order dated 2.12.1997 has allowed the application and as against that order the present civil revision petition has been filed. 2. The suit has been filed for a declaration and recovery of possession of an approximate extent of 60 acres minus the area covered by R.S.No.449/1 having an extent of 10 acres, 51 cents in the land in R.S.Nos.449/1, 2 and 3 and surrounding properties coming within the stated boundaries in Arumanalloor Village, Thovalai Taluk in Kanyakumari District and for a permanent injunction restraining the first respondent state from interfering with the possession and enjoyment of the plaintiff over the portion of the schedule property excluded R.S.No.449/1 by it-self or through its officers, servants and men. [Italics supplied] 3. The first respondent alone was impleaded as the defendant. The affidavit in support of the application for impleading has been sworn to by the District Collector of Kanyakumari District. The allegations found in the affidavit are as under: The petitioners/plaintiffs are entitled only to 10 acres and 51 cents in the schedule property and to the rest of the portion they have no right. The plaint schedule is surrounded on all the sides by Reserve Forest land. Regarding the schedule property the present first plaintiff and his brothers filed a petition before the Assistant Settlement Officer, Nagercoil, making the Tahsildar, Thovalai, the District Forest Officer and the Forest Range Officers, Azhaginapandipuram, as the respondents. The claim was rejected by the Assistant Settlement Officer. A revision to the Director of Survey and Settlement was dismissed. Further revision was rejected by the Special Commissioner and Commissioner of Land Administration, Madras. Throughout the District Forest Officer was a party. The first plaintiff and his brothers filed writ petition before the High Court In W.P.No.2791 of 1984 challenging the order passed by the authorities. The District Forest Officer was the fourth respondent. The Writ petition was disposed of on 19.10.1992 with a direction to the writ petitioners to invoke the remedy before the civil court after issuing necessary notice to the Government. The District Forest Officer was the fourth respondent. The Writ petition was disposed of on 19.10.1992 with a direction to the writ petitioners to invoke the remedy before the civil court after issuing necessary notice to the Government. The plaintiffs issued a suit notice on 12.11.1992 to the District Collector, Kanyakumari District. Since the property was forest land the then District Forest Officer sent a reply on 1.3.1983. The District Forest Officer was in the party array in the earlier proceedings in the circumstances, the District Forest Officer was a necessary party since he was in the party array in earlier proceedings regarding the schedule property and also because the property came within the reserve forest area in which the District Forest Officer administered. The District Forest Officer ought to have been joined as defendant whose presence before the court is necessary in order to enable the court effectively and completely to adjudicate upon all the questions involved. 4. The revision petitioners resisted the application contending inter alia that they are entitled to the entire property that falls within the four boundaries set out in the plaint, that the allegation that they are entitled to only 10.51 acres is not correct, that except for 10.51 acres the rest of the extent is in Reserve Forest land is also not correct, that within the four boundaries there is no land reserved as Reserve Forest and that the District Forest Officer is not a necessary party to the proceedings. The thrust of the counter is in paragraph 6. The District Forest Officer is merely a person holding an office under the State and in law only natural person and those who are vested with legal personalities alone are competent to be parties before a civil court and that an office of and under the State does not enjoy the status of a legal person and that no relief is sought for against the District Forest Officer. The application has been filed to delay the course of the trial. The first plaintiff had been examined as P.W.1. He had been partly cross-examined and at that stage the present application had been taken out. 5. The application has been filed to delay the course of the trial. The first plaintiff had been examined as P.W.1. He had been partly cross-examined and at that stage the present application had been taken out. 5. The learned First Additional Subordinate Judge has referred to the various proceedings between the parties culminating in the writ petition and has reasoned that the present petition for impleading had been filed in consonance with the direction in the writ petition and inasmuch as in the writ petition the District Forest Officer was the fourth respondent, it was not open to the revision petitioners to contend that he was not and the Government alone was the proper party. The learned Subordinate Judge further reasoned that no prejudice would be caused if the District Forest Officer was made the second defendant in the suit. So holding he allowed the application. Aggrieved the present revision petition has been filed. 6. Mr.Lakshminarayanan, learned counsel for the revision petitioner, submitted that the plaintiff is the dominus litus. The Forest Officer is a person holding office under the State. The State is represented by the District Collector, Kanyakumari District. The Forest Officer has to take orders from the District Collector and in any event when once the State is represented by the Collector, it is wholly unnecessary to make the Forest Officer a party notwithstanding the fact that he was party in the writ proceedings. The learned counsel further submitted that by his not impleading the Forest Officer as a party, he was taking a risk which he was willing to face. But, he could not be called upon to impleaded apart, who according to him, is not a necessary party to the proceedings. 7. The learned counsel in support of his submissions relied on the following judgments: (1) Om Prakash Tewari v. State Bank of India and others Om Prakash Tewari v. State Bank of India and others Om Prakash Tewari v. State Bank of India and others, A.I.R. 1989 All. 43. (2) Fateh Raj v. Suraj Roopchand another Fateh Raj v. Suraj Roopchand another Fateh Raj v. Suraj Roopchand another, A.I.R. 1969 Raj. 252. (3) Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others, A.I.R. 1969 Pun. & Har. 252. (3) Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others Bannarsi Dass Durga Prasad v. Panna Lal Ram Richhpal Oswal and others, A.I.R. 1969 Pun. & Har. 57. (4) Foolchand v. Union of India, (1960)2 MLJ. 243 : A.I.R. 1961 Mad. 64. (5) Praveen Kumar Bhatia v. Dr. (Mrs.) M.Ghosh and others Praveen Kumar Bhatia v. Dr. (Mrs.) M.Ghosh and others Praveen Kumar Bhatia v. Dr. (Mrs.) M.Ghosh and others, A.I.R. 1989 Del. 274. 8. The learned counsel for the second respondent submitted that no prejudice at all would be caused to the revision petitioners by the second respondent, the Forest Officer, being made a party. A major portion of the properties subject matter of the suit is in Reserve Forest areas and the Forest Officer alone would be in a position to furnish details and contest the suit in a proper manner. The learned counsel further submitted that the revision petitioners themselves had made the Forest Officer a party in the writ proceedings and they should not now go back on the same and leave out the Forest Officer from the array of parties and inasmuch as the revision petitioners had not made the forest officer a party, it had become necessary for the first respondent State to take out the application for impleading the Forest Officer as the second defendant in the suit. The learned counsel further submitted that the principle of dominus litus should not be made such of. 9. In support of her submissions she relied on the following two decisions: (1) Committee of Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra and others Committee of Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra and others Committee of Management, Ratan Muni Jain Inter College and another v. III Additional Civil Judge, Agra and others, A.I.R. 1995 All. 7 and (2) Gram Panchayat Garihi v. Dharambir and others Gram Panchayat Garihi v. Dharambir and others Gram Panchayat Garihi v. Dharambir and others, A.I.R. 1998 P. & H. 165. 10. Admittedly, the State is the defendant and so far as the District is concerned the Collector is the head of the District. 7 and (2) Gram Panchayat Garihi v. Dharambir and others Gram Panchayat Garihi v. Dharambir and others Gram Panchayat Garihi v. Dharambir and others, A.I.R. 1998 P. & H. 165. 10. Admittedly, the State is the defendant and so far as the District is concerned the Collector is the head of the District. All the other District Officers are either his associated or subordinates, but the fact remains that he is the administrative head answerable on behalf of the State in respect of all matters pertaining to the District. It is not disputed that the Reserve Forest in which, according to the first respondent State, the suit properties are situate is in Kanyakumari District under the over all control and supervision of the District Collector, though for better administrative control the District Forest Offices would take individual care of the forest area. 11. The plaintiffs seek relief against the State. The State is properly represented by the District Collector. The impleading of the Forest Officer is totally unnecessary inasmuch as whatever records and whatever clarifications regarding the dispute would be required, could always be furnished by the Forest Officer and his officials to the District Collector for the purpose of defending the case. Merely because the Forest Officer was made a party in the prior writ proceedings, the plaintiffs cannot be compelled to implead the Forest Officer as a party in the proceedings. The plaintiffs are the dominus litus They have the right to choose the party against whom they want relief. May be as pointed out in decided cases the principles of dominus litus should not overstretched. However, at the same time it cannot be disputed that for a party to be impleaded in the proceedings he must be a necessary party. 12. In the decision of the Allahabad High Court in A.I.R. 1995 All. 7, in a writ petition a prayer had been made for an order or direction in the nature of certiorari to quash the plaint and all proceedings in a particular suit. A particular individual had filed an application for impleadment. The individual was the Manager of the committee of Management and he had not been made a party. It was found that he would be a person affected in case another persons was allowed to act as Manager. A particular individual had filed an application for impleadment. The individual was the Manager of the committee of Management and he had not been made a party. It was found that he would be a person affected in case another persons was allowed to act as Manager. The lower court overlooked this glaring feature of the case and this was sought to be rectified by the High Court. It was in those circumstances the High Court held that, “the theory of dominus litus should not be over stretched in the matter of impleading of parties, as it was the duty of the court to ensure that if for deciding the real mater in dispute, a person was a necessary party, the court could order such person to be impleaded and merely because the plaintiff did not choose the implead a person was not sufficient rejection of an application for being impleaded.” The Allahabad High Court further observed that, “the provision of O.1, Rule 10(2), C.P.C. were very wide and the powers of the court were equally extensive. Even without an application to be impleaded as a party, the court could at any stage of the proceedings order that the name of any party, who ought to have been joined whether as a plaintiff or defendant or whose presence before the court might be necessary in order to enable the court effectually and completely to adjudicate upon and settle and the questions involved in the suit, be added.” The principle is perfect. But, that was applied having regard to the facts of that case and it has no application to the present case, because the District Forest Officer is not shown to be a necessary party for the purpose of adjudication of the dispute between the plaintiffs and the State. 13. The next decision is the one reported in Gram Panchayat, Garihi v. Dharmabir and others Gram Panchayat, Garihi v. Dharmabir and others Gram Panchayat, Garihi v. Dharmabir and others, A.I.R. 1998 P. & H. 165. In that case, the suit was or declaration of title and permanent injunction against dispossession. The defendant claimed title by virtue of an agreement to sell with the owner of the adjoining land. It was held that the owner of the adjoining land was a necessary party and entitled to be joined as defendant. In that case, the suit was or declaration of title and permanent injunction against dispossession. The defendant claimed title by virtue of an agreement to sell with the owner of the adjoining land. It was held that the owner of the adjoining land was a necessary party and entitled to be joined as defendant. In my view, this case has also no application to the fact of the present case. 14. In Ram Bilash Pandey and others v. Jai Narayan Gupta and others Ram Bilash Pandey and others v. Jai Narayan Gupta and others Ram Bilash Pandey and others v. Jai Narayan Gupta and others, A.I.R. 1984 Pat. 218. relied on by the learned counsel for the petitioners, it has been held that, “it is for the plaintiff to decide the forum where the suit is to be impleaded as party and his choice as to the place of institution of the suit or the parties to it can only be altered or interfered with by the court under powers given to it by the statue and that a party to a suit cannot be thrust on an unwilling plaintiff, unless or otherwise provided by law.” 15. In Foolchand v. Union of India, (1960)2 MLJ. 243 : A.I.R. 1961 Mad. 64 it has held that it is always open to the plaintiff to implead such a party as it/he deems fit and proper. 16. In Omprakash Tewari v. State Bank of India and others Omprakash Tewari v. State Bank of India and others Omprakash Tewari v. State Bank of India and others, A.I.R. 1989 All. 43 it was held in a suit for recovery of loan filed by the Bank, the Insurance Company insuring for Truck for which loan was obtained was not a necessary party. 17. It has not been shown in the present case as to how the respondents would be affect by the non-impleading of the second respondent as a party. The decision of the lower court for the reasons already stated cannot stand. It has also not been shown that the second respondent had any legal interest in the subject matter of the suit. It is not possible to hold that the second respondent could be impleaded in the suit merely for the purpose of enabling the first respondent state to see that the suit is properly defended. It has also not been shown that the second respondent had any legal interest in the subject matter of the suit. It is not possible to hold that the second respondent could be impleaded in the suit merely for the purpose of enabling the first respondent state to see that the suit is properly defended. As already observed, it is upto the first respondent and his officials and the records available in his office to defendant the suit. There could be absolute no objection to this course being adopted for proper defence of the suit. 18. It has been held in Bannarsi Dass Durga Prashad v. Panna Lal Ram Richhpa Oswal and others Bannarsi Dass Durga Prashad v. Panna Lal Ram Richhpa Oswal and others Bannarsi Dass Durga Prashad v. Panna Lal Ram Richhpa Oswal and others, A.I.R. 1969 P. & H. 57. that, “as a rule the court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litus. He is the master of the suit. He cannot be compelled to fight against a person against ho he does not wish to fight and against who he does not claim any relief. Even if a person may be incidentally affected by the judgment, he need not be a party.” 19. Inasmuch as there is material irregularity in the order of the lower court, this Court is entitled to interfere in the revision. Accordingly the order of the lower court is set aside and the application in I.A.No.199 of 1997 is dismissed. There will, however, be no order as to costs. Revision petition allowed.